01 Mar 2022
Sometimes malpractice is witnessed by staff in the workplace. This could take the form of exam malpractice/fraud, safeguarding, health and safety or physical abuse of children, for example.
This leads to the question of should it be reported, who to and what to do if you are specifically asked not to report malpractice by your employer.
If you do report malpractice, provided it is done in the right way and to the right people, you are likely to be protected in law. If you are subjected to a detriment/dismissal as a result of raising your complaint, this could give rise to a claim.
This article explores some of those issues.
What is whistleblowing?
Whistleblowing is the term used when a worker/employee raises concerns about wrongdoing in the workplace.
Should wrongdoing be reported?
You may have a contractual/regulatory duty to report certain wrongdoing, i.e. safeguarding and fraud. You may also consider that you have a moral obligation to report certain wrongdoing. However, you should also be aware of the consequences of blowing the whistle. Whilst there are legal protections in place for whistleblowers and the employer’s policies may set out the way whistleblowers will be treated, in practice things can be different.
You should check if the employer has a whistleblowing policy and follow the steps in that policy. It may also be worth checking with colleagues (in confidence) who also may have witnessed any wrongdoing and explore the possibility of submitting a collective whistleblowing complaint. However, if in any doubt, it is best to seek advice from the NAEO before blowing the whistle. This is to ensure that you are covered by any protections, before you make your complaints.
How to blow the whistle
There are specific provisions which govern whistleblowing, which must be followed:
- You must disclose information (not merely make general allegations)
- The information should tend to show that one or more of the following:
- that a criminal offence has been committed, is being committed or is likely to be committed
- that a person has failed, is failing or is likely to fail to comply with any legal obligation to which s/he is subject
- that a miscarriage of justice has occurred, is occurring or is likely to occur
- that the health or safety of any individual has been, is being or is likely to be endangered
- that the environment has been, is being or is likely to be damaged
- that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.
- To be a qualifying disclosure, there needs to be reasonable belief in the above categories of failure and that it is in the public interest
- The disclosure must be made to one of the following persons:
- the employer or other responsible person;
- a legal advisor in the course of obtaining legal advice;
- a government minister (if the worker works for a government agency);
- an appropriate authority (i.e. certain regulators as long as certain conditions are met);
- A person who is not covered by the list above, provided certain conditions are met (i.e. reasonable belief of victimisation or evidence being concealed/destroyed);
A disclosure will not be a qualifying disclosure if the person making the disclosure commits a criminal offence or where the information has been disclosed for the purposes of obtaining legal advice and is covered by legal professional privilege.
Am I protected?
Employees and workers are covered by the whistleblowing legislation. Workers include homeworkers, agency workers, trainees on placements and self-employed persons providing services directly to schools, colleges and local authorities.
If you have made a qualifying whistleblowing complaint and are later dismissed or subject to a detriment/victimised as a result, you can potentially bring claims for automatic unfair dismissal or detriment. These are a day 1 right, so you do not need to have a minimum length of service (in contrast to normal unfair dismissal claims for example, where you need 2 years’ service).
If you are specifically asked not to report any wrongdoing, but then do so and are victimised as a result, this too would give rise to a claim.
What to do if I have been mistreated after blowing the whistle
You should make a note of any requests not to report wrongdoing by the employer, and then any subsequent mistreatment in a diary stating the date, act and persons involved. This will then be helpful evidence if you need to pursue a grievance for the way you have been treated or, worst case, you need to pursue an Employment Tribunal claim.
If you have been victimised, you should raise a grievance citing the victimisation/detriments suffered, citing the reason for this treatment is the fact that you have blown the whistle. The NAEO can assist you in this regard.
If you have been dismissed, you should appeal your dismissal, whether you have been given the opportunity to appeal or not, citing the reason for the dismissal being the fact that you have blown the whistle. Again, the NAEO can assist you in this regard.
If you consider that any of the above applies to you, speak to your professional association and take advice.
Time limits
Please be aware that if you have grounds to pursue an Employment Tribunal claim, such as unfair dismissal or detriment, there are only very short timescales within which to act and claims must generally be actioned within 3 months (less a day) of the date of the alleged unlawful act. The precise time limits will depend on the circumstances of your case.
The information contained within this article should not be used as a substitute for taking legal advice.